Title 49—Transportation--Volume 1
PART 1155—SOLID WASTE RAIL TRANSFER FACILITIES
§ 1155.1   Purpose and scope.
49 U.S.C. 10501(c)(2)(B) excludes solid waste rail transfer facilities from the Board's jurisdiction except as provided under 49 U.S.C. 10908 and 10909. Sections 10908 and 10909 provide the Board authority to issue land-use-exemption permits for solid waste rail transfer facilities when certain conditions are met. The regulations in this part concern land-use-exemption permits and the Board's standard for review.
§ 1155.2   Definitions.
(a) Unless otherwise provided in the text of these regulations, the following definitions apply in this part:
(1) Commercial and retail waste means material discarded by stores, offices, restaurants, warehouses, nonmanufacturing activities at industrial facilities, and other similar establishments or facilities.
(2) Construction and demolition debris means waste building materials, packaging, and rubble resulting from construction, remodeling, repair, and demolition operations on pavements, houses, commercial buildings, and other structures.
(3) Environmental Impact Statement or “EIS” means the detailed written statement required by the National Environmental Policy Act, 42 U.S.C. 4332(2)(c), for a major federal action significantly affecting the quality of the human environment.
(4) Household waste means material discarded by residential dwellings, hotels, motels, and other similar permanent or temporary housing establishments or facilities.
(5) Industrial waste means the solid waste generated by manufacturing and industrial and research and development processes and operations, including contaminated soil, nonhazardous oil spill cleanup waste and dry nonhazardous pesticides and chemical waste, but does not include hazardous waste regulated under subtitle C of the Solid Waste Disposal Act (42 U.S.C. 6921 et seq. ), mining or oil and gas waste.
(6) Institutional waste means material discarded by schools, nonmedical waste discarded by hospitals, material discarded by nonmanufacturing activities at prisons and government facilities, and material discarded by other similar establishments or facilities.
(7) Municipal solid waste means household waste, commercial and retail waste, and institutional waste.
(8) Office of Environmental Analysis or “OEA” means the Board staff that prepares the Board's environmental documents and analyses.
(9) Solid waste means construction and demolition debris; municipal solid waste; household waste; commercial and retail waste; institutional waste; sludge; industrial waste; and other solid waste, as determined appropriate by the Board, but not waste generated by a rail carrier during track, track structure, or right-of-way construction, maintenance, or repair (including railroad ties and line-side poles), or waste generated as a result of a railroad accident, incident, or derailment.
(10) Solid waste rail transfer facility —
(i) Means the portion of a facility owned or operated by or on behalf of a rail carrier (as defined in 49 U.S.C. 10102) where solid waste, as a commodity to be transported for a charge, is collected, stored, separated, processed, treated, managed, disposed of, or transferred, when the activity takes place outside of original shipping containers; but
(ii) Does not include—
(A) The portion of a facility to the extent that activities taking place at such portion are comprised solely of the railroad transportation of solid waste after the solid waste is loaded for shipment on or in a rail car, including railroad transportation for the purpose of interchanging railroad cars containing solid waste shipments; or
(B) A facility where solid waste is solely transferred or transloaded from a tank truck directly to a rail tank car.
(11) Sludge means any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant.
(b) Exceptions. Notwithstanding paragraph (a) of this section, the terms household waste, commercial and retail waste, and institutional waste do not include yard waste and refuse-derived fuel; used oil; wood pallets; clean wood; medical or infectious waste; or motor vehicles (including motor vehicle parts or vehicle fluff).
(c) Land-use-exemption permit means the authorization issued by the Board pursuant to the authority of 49 U.S.C. 10909(a) and includes the term “siting permit” in 49 U.S.C. 10909(e).
(d) State laws, regulations, orders, or other requirements affecting the siting of a facility, as used in 49 U.S.C. 10909(f) and 49 CFR 1155.27(d), include the requirements of a state or a political subdivision of a state, including a locality or municipality, affecting the siting of a facility.
(e) State requirement, as used in 49 U.S.C. 10908 does not include the laws, regulations, ordinances, orders, or other requirements of a political subdivision of a state, including a locality or municipality, unless a state expressly delegates such authority to such political subdivision.
§ 1155.10   Contents of petition.
A petition to require a solid waste rail transfer facility in existence on October 16, 2008, to apply for a land-use-exemption permit, submitted by the Governor of the state or that Governor's designee, shall contain the following information:
(a) The Governor's name.
(b) The state's name and the name of any agency filing on behalf of the Governor.
(c) The full address of the solid waste rail transfer facility, or, if not available, the city, state, and United States Postal Service ZIP code.
(d) The name of the rail carrier that owns or operates the facility or the rail carrier on whose behalf the facility is operated.
(e) A good-faith certification that the facility qualified as a solid waste rail transfer facility as defined in 49 U.S.C. 10908(e)(1)(H) and 49 CFR 1155.2, on October 16, 2008.
(f) Relief sought (that the rail carrier that owns or operates the facility be required to apply for a land-use-exemption permit).
(g) Name, title, and address of representative of petitioner to whom correspondence should be sent.
§ 1155.11   Filing and service of petition.
(a) When the petition is filed with the Board, the petitioner shall serve concurrently, by first class mail, a copy of the petition on the rail carrier that owns or operates the solid waste rail transfer facility and on the facility if the address is different than the rail carrier's address. A copy of the certificate of service shall be filed with the Board at the same time.
(b) Upon the filing of a petition, the Board will review the petition and determine whether it conforms to all applicable regulations. If the petition is substantially incomplete or is otherwise defective, the Board will reject the petition without prejudice for stated reasons by order within 15 days from the date of filing of the petition.
(c) If the petition is rejected, a revised petition may be resubmitted, and the Board will determine whether the resubmitted application conforms with all prescribed regulations.
§ 1155.12   Participation in petition proceedings.
(a) An interested person may file a reply to the petition challenging any of the information contained in the petition that is required by 49 CFR 1155.10(c) through (e) and may offer evidence to support its contention. The petitioner will have an opportunity to file a rebuttal.
(b) A facility can acknowledge that it was a solid waste rail transfer facility on October 16, 2008, but no longer operates as such and therefore is not required to seek a land-use-exemption permit. To do so, a facility must file with the Board a certification stating that it:
(1) No longer operates as a solid waste transfer facility;
(2) Understands that by certifying that it no longer operates as a solid waste transfer facility, it no longer qualifies as a facility in existence on October 16, 2008 for purposes of the Clean Railroad Act and these regulations; and
(3) Understands that if it seeks a land-use-exemption permit in the future, it would be required to do so as a proposed facility.
(c) Filing and service of replies. (1) Any reply shall be filed with the Board (the Chief, Section of Administration, Office of Proceedings, Surface Transportation Board, 395 E Street SW., Washington, DC 20423) within 20 days of the filing with the Board of the petition.
(2) A copy of the reply shall be served on petitioner or its representative at the time of filing with the Board. Each filing shall contain a certificate of service.
(3) Any rebuttal to a reply shall be filed and served by petitioner no later than 30 days after the filing of the petition.
§ 1155.13   Board determination with respect to a Governor's petition.
The Board shall accept the Governor's complete petition on a finding that the facility qualified as a solid waste rail transfer facility, as defined in 49 U.S.C. 10908(e)(1)(H) and 49 CFR 1155.2, on October 16, 2008. If the Board finds that the facility currently does not qualify for or require a land-use-exemption permit, any future use of the facility as a solid waste rail transfer facility would require an application for a land-use-exemption permit as a proposed facility and/or the proper state permits. In a decision granting the Governor's petition, the Board shall require that the rail carrier that owns or operates the facility, or the operator of the facility, file a land-use-exemption-permit application within 120 days of the service date of the decision.
§ 1155.20   Notice of intent to apply for a land-use-exemption permit.
(a) Filing and publication requirements. An applicant (i.e., a solid waste rail transfer facility, or the rail carrier that owns or operates the facility) shall give its Notice of Intent to file a land-use-exemption-permit application by complying with the following procedures:
(1) Filing. Applicant must serve its Notice of Intent on the Board in the format prescribed in Appendix A to this part. The Notice of Intent shall be filed in accordance with the time requirements of paragraph (b) of this section.
(2) Service. Applicant must serve, by first-class mail (unless otherwise specified), its Notice of Intent upon:
(i) The Governor of the state where the facility is located;
(ii) The municipality, the state, and any relevant political subdivision of a state or federal or state regional planning entity in the jurisdiction of which the solid waste rail transfer facility is located or proposed to be located; and
(iii) The appropriate managing government agencies responsible for the groups of land listed in 49 U.S.C. 10909(c)(2).
(3) Newspaper publication. Applicant must publish its Notice of Intent at least once during each of 3 consecutive weeks in a newspaper of general circulation in each county in which any part of the proposed or existing facility is located.
(b) Time limits. (1) The Notice of Intent must be served on the parties discussed above at least 15 days, but not more than 30 days, prior to the filing of the land-use-exemption-permit application;
(2) The three required newspaper Notices must be published within the 30-day period prior to the filing of the application; and
(3) The Notice of Intent must be filed with the Board either concurrently with service on the required parties or when the Notice is first published (whichever occurs first).
(c) Environmental and Historic Reports. Applicant must also submit an Environmental and/or Historic Report containing the information described at 49 CFR 1155.24(b), 1105.7, and 1105.8, to the extent applicable, at least 45 days prior to filing an application. OEA may reject any report that it deems inadequate. The environmental and historic reporting requirements that would otherwise apply are waived, however, if the applicant or the Board hires a third-party consultant, OEA approves the scope of the consultant's work, and the consultant works under OEA's supervision to prepare an EIS or other environmental documentation. In such a case, the consultant acts on behalf of the Board, working under OEA's direction to collect the needed environmental information and compile it into an EIS or other appropriate environmental documentation. See 49 U.S.C. 10909(h); 49 CFR 1155.24(c).
§ 1155.21   Contents of application.
Applications for land-use-exemption permits for the facility, and any proposed future expansion within 10 years of the application date, shall contain the following information, including supporting documentation:
(a) General. (1) Exact name of applicant.
(2) Whether applicant is a common carrier by railroad subject to 49 U.S.C. Subtitle IV, chapter 105.
(3) Summary of why a land-use-exemption permit is being sought.
(4) The full address of the solid waste rail transfer facility, or, if not available, the city, state, and United States Postal Service ZIP code.
(5) The name of the rail carrier that owns or operates the facility or the rail carrier on whose behalf the facility is operated, the line of railroad serving the facility, the milepost location of the facility, and the milepost and names of the stations that the facility is located between.
(6) Name, title, and address of representative of applicant to whom comments should be sent.
(7) Copies of the specific state, local, or municipal laws, regulations, orders, or other requirements affecting the siting of the solid waste rail transfer facility from which the applicant requests entire or partial exemption, any publicly available material providing the criteria for the application of the state, local, or municipal laws, regulations, orders, or other requirements affecting the siting, and a description of any action that the state, local, or municipal authority has taken affecting the siting of the facility. The applicant shall state whether each law, regulation, order or other requirement from which an exemption is sought is an environmental, public health, or public safety standard that falls under the traditional police powers of the state. If the applicant states that the requirement is not such a standard, it shall explain the reasons for its statement.
(8) Certification that the laws, regulations, orders or other requirements from which the applicant requests exemption are not based on federal laws, regulations, orders, or other requirements.
(9) Certification that the facility complies with all state, local, or municipal laws, regulations, orders, or other requirements affecting the siting of the facility except for those from which it seeks exemption.
(10) Certification that the applicant has applied or will apply for the appropriate state permits not affecting siting.
(11) For facilities not in existence as of October 16, 2008, certification that the facility is not proposed to be located on land within any unit of or land affiliated with the National Park System, the National Wildlife Refuge System, the National Wilderness Preservation System, the National Trails System, the National Wild and Scenic Rivers System, a National Reserve, or a National Monument. For facilities in existence as of October 16, 2008, state whether the facility is located in any of these types of lands.
(12) For facilities not in existence as of October 16, 2008, certification that the facility is not proposed to be located on lands referenced in The Highlands Conservation Act, Public Law No. 108-421, for which a state has implemented a conservation management plan, or, that the facility is consistent with the restrictions implemented by the applicable state under The Highlands Conservation Act, Public Law No. 108-421, placed on its proposed location. For facilities in existence as of October 16, 2008, state whether the facility is located on any of these lands, and, if so, address whether the facility is consistent with the restrictions placed on the location by the applicable state under that law.
(13) An explanation of how the facility comes within the Board's jurisdiction under 49 U.S.C. 10501.
(14) The owner and operator of the facility.
(15) The interest of the rail carrier in the facility.
(16) An explanation of how the facility meets the definition of a solid waste rail transfer facility at 49 U.S.C. 10909(e)(1)(H).
(17) A statement whether the applicant has sought permission from the applicable state, local, or municipal authority with respect to some or all of the facility in its application and received an unsatisfactory result affecting the siting of the facility. The applicant shall provide information about the unsatisfactory result and shall include all relevant orders, decisions, or other notices of the denial.
(18) A detailed description of the operations and activities that will occur/are occurring at the facility.
(19) Detailed map showing the subject facility on sheets not larger than 11x17 inches, drawn to scale, and with the scale shown thereon. The map must show, in clear relief, the exact location of the facility on the rail line and its relation to other rail lines in the area, highways, water routes, population centers, and any geographic features that should be considered in determining whether the facility would pose an unreasonable risk to public health, safety, or the environment, pursuant to 49 U.S.C. 10909(c)(1).
(20) Detailed drawing of the subject facility on sheets not larger than 11x17 inches, drawn to scale, and with the scale shown thereon. The drawing must show, in clear relief, the exact boundaries of the facility, structures at the facility, the location and type of the operations taking place at the facility, the proposed traffic configuration for the solid waste entering and leaving the facility, reasonable future expansion planned for the next 10 years that the applicant requests to be included in the land-use-exemption permit, any geographic features that should be considered in determining whether the facility would pose an unreasonable risk to public health, safety, or the environment, pursuant to 49 U.S.C. 10909(c)(1), and any other information that the applicant believes would be relevant.
(21) A detailed justification for why any future expansion planned for the next 10 years should be covered by the land-use-exemption permit.
(b) Statement. A statement that sets forth, based on currently available information, the reasons why the Board should grant a land-use-exemption permit to the applicant under the standards in 49 U.S.C. 10909(c), (d) and the regulations in this part. Specifically, the applicant shall include an explanation of whether the laws, regulations, or other requirements affecting siting of the facility from which exemption is sought, on their face or as applied, unreasonably burden the interstate transportation of solid waste by railroad or discriminate against the railroad transportation of solid waste and a solid waste rail transfer facility, and, if so, why.
(c) Environmental impact. The applicant shall certify that it has submitted an Environmental and/or Historic Report containing the information in 49 CFR 1155.24(b), 1105.7, and 1105.8, to the extent applicable, if an Environmental and/or Historic Report is required. See 49 CFR 1155.20(c).
(d) Additional information. The applicant shall submit such additional information to support its application as the Board may require.
(e) Draft Federal Register Notice. The applicant shall submit a draft notice of its application to be published by the Board. The Board will publish the notice in the Federal Register within 20 days of the application's filing with the Board. The draft notice shall be in the form set forth in appendix B to this part.
(f) Verification. The original application shall be executed and verified in the form set forth below by an officer of the applicant having knowledge of the facts and matters relied upon.
State of ____ ss.
County of ____
______ (Name of affiant) makes oath and says that (s)he is the ____ (title of affiant) of the ____ (name of applicant) applicant herein; that (s)he has been authorized by the applicant (or as appropriate, a court) to verify and file with the Surface Transportation Board the foregoing application in Finance Docket No. __ (Sub-No. __); that (s)he has carefully examined all of the statements in the application as well as the exhibits attached thereto and made a part thereof; that (s)he has knowledge of the facts and matters relied upon in the application; and that all representations set forth therein are true and correct to the best of his/her knowledge, information, and belief.
Subscribed and sworn to before me ____ in and for the State and County above named, this __ day of __, 20__.
My commission expires ____
§ 1155.22   Filings and service of application.
(a) The applicant shall tender with its application an affidavit attesting to its compliance with the notice requirements of 49 CFR 1155.20. The affidavit shall include the dates of service, posting, and newspaper publication of the Notice of Intent.
(b) When the application is filed with the Board, the applicant shall serve concurrently, by first-class mail, a copy on the Governor of the state where the facility is located; the municipality, the state, and any relevant political subdivision of a state or federal or state regional planning entity of the jurisdiction in which the solid waste rail transfer facility is located or proposed to be located; and the appropriate managing government agencies responsible for the groups of land listed in 49 U.S.C. 10909(c)(2). A copy of the certificate of service shall be filed with the Board at the same time.
(c) The applicant shall promptly furnish by first class mail a copy of the application to any interested person proposing to file a comment upon request. A copy of the certificate of service shall be filed with the Board at the same time.
(d)(1) Upon the filing of a land-use-exemption-permit application, the Board will review the application and determine whether it conforms to all applicable regulations. If the application is substantially incomplete or is otherwise defective, the Board shall reject the application for stated reasons by order within 20 days from the date of filing of the application. If the Board does not reject the application, notice of the filing of the application shall be published in the Federal Register by the Board, through the Director of the Office of Proceedings, within 20 days of the filing of the application.
(2) If the application is rejected, a revised application may be submitted and the Board will determine whether the resubmitted application conforms with all prescribed regulations. A properly revised application submitted within 60 days of the order rejecting the incomplete or improper application need not be subject to new notice and publication under § 1155.20, unless the defect causing the rejection was in the notice and/or publication. A revised application submitted after such 60-day period must be newly published and noticed.
(3) The resubmission of a complete and properly filed land-use-exemption-permit application shall be considered a de novo filing for the purposes of computation of the time periods prescribed in the regulations contained in this part.
(4) An applicant may seek waiver of specific regulations listed in subpart C of this part by filing a petition for waiver with the Board. When the petition is filed with the Board, the applicant shall serve, by first-class mail, a copy on the Governor of the state where the facility is located; the municipality, the state, and any relevant political subdivision of a state or federal or state regional planning entity of the jurisdiction in which the solid waste rail transfer facility is located or proposed to be located; and the appropriate managing government agencies responsible for the groups of land listed in 49 U.S.C. 10909(c)(2). A copy of the certificate of service shall be filed with the Board at the same time. A decision by the Director of the Office of Proceedings granting or denying a waiver petition will be issued within 30 days of the date the petition is filed. Appeals from the Director's decision will be decided by the entire Board. If waiver is not obtained prior to the filing of the application, the application may be subject to rejection.
§ 1155.23   Participation in application proceedings.
(a) Initial comments. Interested persons may become parties to a land-use-exemption-permit proceeding by filing initial comments with the Board within 45 days of the filing of the application. Comments should contain the following information, as appropriate:
(1) Name, address, and organizational affiliation.
(2) A statement describing commenter's interest in the proceeding, including information concerning any organization or public interest it represents.
(3) Reasons, in general, why commenter supports or opposes the application, taking into account the standards for the Board's review and consideration set forth in 49 U.S.C. 10909(c), (d) and this part.
(4) Any rebuttal to the evidence and argument submitted by applicant.
(b) Final comments. Interested persons, including the applicant, within 30 days after the close of OEA's environmental review, may comment on how the information developed during OEA's environmental review concerning the considerations at 49 U.S.C. 10909(d)(1) through (5) should be weighed with the remaining transportation and other relevant considerations at 49 U.S.C. 10909(d)(6) through (7). The parties will have an additional 15 days to respond to other parties' arguments. All pleadings shall be limited to weighing the information developed during OEA's environmental review with transportation and other concerns, and should not be directed towards the adequacy of OEA's environmental review. (Interested persons may comment on the adequacy of OEA's environmental review during the normal comment period for the EIS as provided in 49 CFR 1105.10(a)(4). See 49 CFR 1155.24(a).) All comments under this paragraph shall contain the information required in paragraphs (a)(1) through (2) of this section.
(c) Filing and service of comments and replies (including evidence and argument). (1) Initial comments shall be filed with the Board (addressed to the Chief, Section of Administration, Office of Proceedings, Surface Transportation Board, 395 E Street SW., Washington, DC 20423) within 45 days of the filing with the Board of a land-use-exemption-permit application. A copy of each comment shall be served on applicant or its representative at the time of filing with the Board. Each filing shall contain a certificate of service.
(2) Final comments shall be filed and served on all parties within 30 days of the close of the environmental review. A copy of each comment shall be served on applicant or its representative at the time of filing with the Board. Each filing shall contain a certificate of service.
(3) Replies to final comments shall be filed and served on all parties no later than 45 days after the close of the environmental review. A copy of each reply to comments shall be served on applicant or its representative at the time of filing with the Board. Each filing shall contain a certificate of service.
§ 1155.24   Environmental review.
(a) A land-use-exemption permit generally will require the preparation of an EIS. OEA may reclassify the environmental review requirements of land-use-exemption proceedings on a case-by-case basis, pursuant to 49 CFR 1105.6(d).
(b) An applicant for a land-use-exemption permit must submit an Environmental Report, at least 45 days prior to filing a land-use-exemption-permit application, containing the information described at 49 CFR 1105.7 to the extent applicable to solid waste rail transfer facilities. Applicants shall concurrently file a Historic Report containing the information at 49 CFR 1105.8 if applicable. The Environmental Report must also contain a discussion of the five factors for consideration listed at 49 U.S.C. 10909(d)(1) through (5) and address any associated environmental impacts as they relate to the facility for which a land-use-exemption permit is sought.
(c) The Board strongly encourages applicants to use third-party contractors to assist OEA in preparing the appropriate environmental documentation in land-use-exemption-permit proceedings. See 49 CFR 1105.10(d). The environmental reporting requirements outlined above that would otherwise apply are waived if an applicant hires a third-party contractor, OEA approves the scope of the contractor's work, and the contractor works under OEA's direct supervision. See 49 CFR 1105.10(d). If an applicant does not hire an independent third-party contractor, the Board may hire a third-party contractor and charge the costs for the contractor to the applicant. See 49 U.S.C. 10909(h).
(d) The Board's procedures set forth in 49 CFR 1105.10 for implementation of environmental laws are controlling unless superseded by provisions in this Part.
(e) An applicant for a land-use-exemption permit must follow the Board's procedures at 49 CFR 1105.9 for compliance with the Coastal Zone Management Act, 16 U.S.C. 1451 through 1465, if that act is applicable.
§ 1155.25   Transfer and termination of a land-use-exemption permit.
(a) A land-use-exemption permit may be transferred from a rail carrier to an acquiring rail carrier without the need for a new application for a land-use-exemption permit if the rail line associated with the solid waste rail transfer facility is transferred to another rail carrier or to an entity formed to become a rail carrier pursuant to authority granted by the Board under 49 U.S.C. 10901, 10902, or 11323. When seeking Board authority under 49 U.S.C. 10901, 10902, or 11323, the applicant(s) shall specifically advise the Board, the municipality, the state, and any relevant political subdivision of a state or federal or state regional planning entity of the jurisdiction in which the solid waste rail transfer facility is located, of the intended transfer. The Federal Register notice concerning the acquisition shall include a statement that a solid waste rail transfer facility with a Board-issued land-use-exemption permit is included in the acquisition.
(b) When a carrier plans to cease using a facility as a solid waste rail transfer facility, or when a facility is transferred to any party in any manner other than that described in paragraph (a) of this section, the entity that received the land-use-exemption permit must notify the Board, the municipality, the state, and any relevant political subdivision of a state or federal or state regional planning entity of the jurisdiction in which the solid waste rail transfer facility is located, in writing no later than 60 days prior to the proposed cessation or transfer. Upon receipt of that notice, the Board will publish notice in the Federal Register that the land-use-exemption permit will be terminated on the 60th day unless otherwise ordered by the Board.
§ 1155.26   Board determinations under 49 U.S.C. 10909.
(a) Schedule. (1) The schedule in paragraph (a)(2) of this section shall govern the process for Board consideration and decisions in land-use-exemption-permit application proceedings from the time the application is filed until the time of the Board's decision on the merits:
(2) At least 45 days prior to filing of application—Environmental Report (and/or Historic Report, if applicable) filed and environmental process initiated pursuant to 49 CFR 1155.24. Within 30 days prior to filing of application—Notice of Intent filed with the Board pursuant to the deadlines and requirements described in 49 CFR 1155.20(b)(3).
(i) Day 0—Application filed.
(ii) Day 20—Due date for Notice of Application to be published in the Federal Register.
(iii) Day 45—Due date for initial comments.
(iv) 30 days after the Final EIS (or other final environmental documentation) is issued by OEA—Due date for final comments.
(v) 45 days after the Final EIS (or other final environmental documentation) is issued by OEA—Due date for replies to final comments.
(3) A decision on the merits will be due 90 days after a full record is developed.
(b) Standard for review. (1) The Board will issue a land-use-exemption permit only if it determines that the facility at the existing or proposed location would not pose an unreasonable risk to public health, safety, or the environment. In deciding whether a solid waste rail transfer facility that is or proposed to be constructed or operated by or on behalf of a rail carrier poses an unreasonable risk to public health, safety, or the environment, the Board shall weigh the particular facility's potential benefits to and the adverse impacts on public health, public safety, the environment, interstate commerce, and transportation of solid waste by rail.
(2) The Board will not grant a land-use-exemption permit for a solid waste rail transfer facility proposed to be located on land within any unit of or land affiliated with the National Park System, the National Wildlife Refuge System, the National Wilderness Preservation System, the National Trails System, the National Wild and Scenic Rivers System, a National Reserve, or a National Monument.
(3) The Board will not grant a land-use-exemption permit for a solid waste rail transfer facility proposed to be located on land within any unit of or land affiliated with lands referenced in The Highlands Conservation Act, Public Law No. 108-421, for which a state has implemented a conservation management plan, if operation of the facility would be inconsistent with restrictions placed on such land.
(4) The Board will reject an application from a person who is not a rail carrier, but is instead operating on behalf of a rail carrier unless;
(i) The applicant has sought permission from the applicable state, local, or municipal authority with respect to some or all of the property in the application and received an unsatisfactory result affecting the siting of the facility, or
(ii) The Governor of the state has petitioned the Board to require the facility to apply under subpart B of this part.
(5) The Board will issue a land-use-exemption permit to an applicant that has received an unsatisfactory result from a state, local or municipal authority affecting the siting of the facility only if it finds that the laws, regulations, or other requirements affect the siting of the facility, on their face or as applied, either;
(i) Unreasonably burden the interstate transportation of solid waste by railroad, or
(ii) Discriminate against the railroad transportation of solid waste and a solid waste rail transfer facility.
(6) A land-use-exemption permit will only exempt state, local, or municipal laws, regulations, orders, other requirements, or portions thereof, affecting the siting of the solid waste rail transfer facility.
(c) Considerations. As required by 49 U.S.C. 10909(d), the Board will consider and give due weight to the following, as applicable:
(1) The land-use, zoning, and siting regulations or solid waste planning requirements of the state or state subdivision in which the facility is or will be located that are applicable to solid waste transfer facilities, including those that are not owned or operated by or on behalf of a rail carrier;
(2) The land-use, zoning, and siting regulations or solid waste planning requirements applicable to the property where the solid waste rail transfer facility is proposed to be located;
(3) Regional transportation planning requirements developed pursuant to federal and state law;
(4) Regional solid waste disposal plans developed pursuant to federal or state law;
(5) Any federal and state environmental protection laws or regulations applicable to the site;
(6) Any unreasonable burdens imposed on the interstate transportation of solid waste by railroad, or the potential for discrimination against the railroad transportation of solid waste, a solid waste rail transfer facility, or a rail carrier that owns or operates such a facility; and
(7) Any other relevant factors, as determined by the Board.
(d) Permits. If the Board grants a land-use-exemption permit for a solid waste rail transfer facility, such permit will only exempt a facility from complying with state laws, regulations, orders, or other requirements affecting the siting of the facility that are specified therein. The permit will require compliance with all other state laws, regulations, orders, or other requirements not otherwise expressly exempted in the permit.
§ 1155.27   Petitions to modify, amend, or revoke a land-use-exemption permit.
General rule. Petitions to modify, amend, or revoke land-use-exemption permits shall be decided in accordance with the Board's normal standard of review for petitions to reopen administratively final Board actions at 49 CFR 1115.4. The petition must demonstrate material error, new evidence, or substantially changed circumstances that warrant the requested action, and is subject to these additional conditions:
(a) An entity that petitions for a modification or amendment requesting an expansion of federal preemption or the facility's operations or physical size is subject to the notice and application requirements in this subpart C. The language of the notifications shall be modified to note that the petition is for a modification or amendment.
(b) The Board will approve or deny petitions to modify, amend, or revoke a land-use-exemption permit within 90 days after the full record for the petition is developed.